Citations: [2019] ScotHC HCJAC – 18, 2019 SCCR 172, [2019] HCJAC 18 Links: Bailii Jurisdiction: Scotland Criminal Evidence Updated: 25 November 2022; Ref: scu.652467
Citations: [2002] ScotHC 90 Links: Bailii Jurisdiction: Scotland Crime Updated: 08 June 2022; Ref: scu.189819
Citations: [2018] ScotHC HCJAC – 25 Links: Bailii Jurisdiction: Scotland Crime Updated: 24 April 2022; Ref: scu.618816
Citations: [2022] ScotHC HCJAC – 1 Links: Bailii Jurisdiction: Scotland Crime Updated: 05 April 2022; Ref: scu.671660
Citations: [2017] ScotHC HCJAC – 67 Links: Bailii Jurisdiction: Scotland Crime Updated: 30 March 2022; Ref: scu.595849
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Copy of a statement of reasons – Mr Beck requested from the Scottish Criminal Cases Review Commission (the SCCRC) the statement of reasons issued by the SCCRC in relation to a named individual. The SCCRC responded by advising Mr Beck that it considered the information to be exempt from disclosure in terms of section 26(a) … Continue reading Beck and Scottish Criminal Cases Review Commission: SIC 8 Aug 2011
Citations: [2012] ScotHC HCJAC – 120, 2013 SCCR 295 Links: Bailii Jurisdiction: Scotland Cited by: Cited – Gordon, Re Judicial Review SCS 24-Jan-2013 Judicial Review of a decision of the Scottish Criminal Cases Review Commission not to refer his case to the High Court in terms of section 194B of the Criminal Procedure (Scotland) Act … Continue reading Chamberlain-Davidson, Re Scottish Criminal Cases Review Commission: HCJ 25 Apr 2012
The appellant the Commission’s decision not to refer his case back to the court. They had agreed that a miscarriage of justice might have occurred, but concluded that it was not in the interests of justice to make such a referral. His statement had been obtained without the presence or availability of a lawyer in … Continue reading Gordon v Scottish Criminal Cases Review Commission (Scotland): SC 22 Mar 2017
Lord Justice-General Hamilton considered the role of the Commission and its relationship with the court, and stated: ‘Although this court has been given the power to reject a reference in language that replicates the provision applicable to the Commission (section 194DA(1), (2)), it cannot be right for us simply to duplicate the Commission’s function and … Continue reading RM and Another, Re Scottish Criminal Cases Review Commission: HCJ 25 Apr 2012
Mr Bill Kidd MSP requested from the Scottish Criminal Cases Review Commission (the SCCRC) information relating to cases of defective representation received against a named solicitor. The SCCRC responded by advising Mr Kidd that it considered the information to be exempt from disclosure in terms of section 26(a) of FOISA due to a prohibition on … Continue reading Kidd MSP and Scottish Criminal Cases Review Commission: SIC 13 Oct 2008
The court drew attention to the difference between the situation where the court itself makes inquiries as to events in the jury retiring room with the aim of bringing the court in question into contempt and that where it makes inquiries with the aim of trying to ensure that justice does not miscarry: ‘we have … Continue reading The Scottish Criminal Cases Review Commission for an Order etc: SCS 29 Aug 2000
New evidence on an appeal was admissible only in accordance with the Act. Judges: Lord Justice Clerk Ross Citations: Times 16-May-1995, 1995 JC 95, [1995] ScotHC HCJ – 2, 1995 SLT 612, 1995 SCCR 280 Links: Bailii Statutes: Criminal Procedure (Scotland) Act 228(2) Cited by: Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011 The … Continue reading Elliott (Angus Gordon) v HM Advocate: HCJ 24 Mar 1995
Application for the review of the conviction of (the now deceased) Abdelbaset Ali Mohmed Al Megrahi, who was convicted on 31 January 2001 of the murder of 259 passengers and crew on board PanAm flight PA 103 from London to New York, and 11 residents of Lockerbie on 21 December 1988. Lord Justice Clerk, Lord … Continue reading The Scottish Criminal Cases Review Commission and Dr Jim Swire and Rev John F Mosey: HCJ 12 Aug 2015
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EAT The claimant was employed as a Senior Ramp Agent at Edinburgh Airport by the respondents. In 2002, he was convicted of two charges of assault and an offence under the Criminal Procedure (Scotland) Act 1995. . .
The reclaimer, detained under the 1995 Act, sought judicial review of the respondent’s failure to lay regulations as required before an appeal could be made. Citations: [2011] ScotCS CSIH – 19, [2011] CSIH 19, 2011 GWD 12-268, 2012 SC 397, 2011 SLT 787 Links: Bailii Statutes: Criminal Procedure (Scotland) Act 1995 Jurisdiction: Scotland Prisons, Health … Continue reading RM, Re Judicial Review v The Scottish Ministers: SCS 15 Mar 2011
(Extra Division Inner House) The scope of this appeal relates to the impact of article 5 of the European Convention on Human Rights (‘ECHR’) in circumstances where the petitioner and reclaimer (‘the reclaimer’) is serving an extended sentence under and in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. The reclaimer contends … Continue reading In Reclaiming Motion By Brown v The Parole Board for Scotland and The Scottish Ministers: SCS 31 Jul 2015
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of the decision in Cadder. Held: (Lord Kerr dissenting) The prosecutor’s appeals failed. … Continue reading Jude v Her Majesty’s Advocate: SC 23 Nov 2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what point the duty to allow access to a solicitor arose, and what use might … Continue reading Ambrose v Harris, Procurator Fiscal, Oban, etc: SC 6 Oct 2011
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding charges. He said this raised a devolution issue in that his human right to a fair … Continue reading Allison v Her Majesty’s Advocate: SC 10 Feb 2010
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B was over the age of 16, if the police had previously charged … Continue reading AB v Her Majesty’s Advocate: SC 5 Apr 2017
Judicial Review of a decision of the Scottish Criminal Cases Review Commission not to refer his case to the High Court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995. Held: The application was refused.As to the failure of the defendant to deny what he told the police: ‘[I]t was clearly relevant … Continue reading Gordon, Re Judicial Review: SCS 24 Jan 2013
(Extra Division, Inner House) Challenge to refusal of order for review of failure of the Scottish Criminal Cases Review Commission to refer the reclaimer’s case to the High Court. Held: Appeal refused. Citations: [2013] CSIH 101, [2013] ScotCS CSIH – 101 Links: Bailii Statutes: Criminal Procedure (Scotland) Act 1995 Jurisdiction: Scotland Citing: See Also – … Continue reading Gordon, for Judicial Review: SCS 29 Nov 2013
The appellant was charged with murder. A witness had since died, and he objected to the introduction of his written statement, on the basis that this would infringe his right to a fair trial. The evidence was likely to be decisive. Held: The fairness of the trial had to be considered as a whole. There … Continue reading McKenna v Her Majesty’s Advocate: ScHC 30 Dec 1999
Judicial Review of decisions of the Scottish Criminal Cases Review Commission not to make a reference to the High Court of Justiciary Citations: [2006] ScotCS CSOH – 112 Links: Bailii Statutes: Criminal Procedure (Scotland) Act 1995 194B Jurisdiction: Scotland Criminal Practice Updated: 07 July 2022; Ref: scu.243332
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure. Held: The combination of several failings meant that the defendant had not received a fair trial, and the appeal was allowed. The practice of dock identification was … Continue reading Holland v Her Majesty’s Advocate (Devolution): PC 11 May 2005
PC (The High Court of Justiciary) The minuter challenged the role of the legal adviser to the district courts in Scotland, and as to his independence. Held: The legal adviser was not subject to the same system of appointments as the justices. However the system provided for a right of appeal (section 175) on questions … Continue reading Clark (Procurator Fiscal, Kirkcaldy) v Kelly: PC 11 Feb 2003
Parties challenged the compliance of proceedings with the convention where there had been considerable delay. Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing rights, which could be broken notwithstanding absence of effect on the fairness of the trial. The threshold for delay was high, but once established … Continue reading Dyer v Watson and Burrows: PC 29 Jan 2002
Judges: Lord Justice General and Lord Johnston and Lord Eassie Citations: [1999] ScotHC 219 Links: Bailii, Bailii Statutes: Criminal Procedure (Scotland) Act 1995 74(1) Jurisdiction: Scotland Cited by: Appeal from – Montgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000 The test of whether a defendant’s common law right to a fair trial had been … Continue reading Her Majesty’s Advocate v Montgomery and Coulter: HCJ 14 Sep 1999
The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not all constitutional issues were indeed devolution issues.Save for devolution … Continue reading Hoekstra and Others v Her Majesty’s Advocate High Court of Justiciary: PC 26 Oct 2000
The defendants appealed against their convictions based upon a faulty indictment. The Act required the that when signing a bill of indictment, the signature should bear certain words signifying the authority of the signatory. The words used were incorrect. Held: The words used were sufficient for the purpose, and the appeals were dismissed. Judges: Lady … Continue reading Christie, Young, Scott v Her Majesty’s Advocate: HCJ 26 Sep 2003
Judges: Lord Prosser and Lord Eassie and Lord Caplan Citations: [2000] ScotHC 20, 2000 JC 127 Links: Bailii, ScotC Statutes: Criminal Procedure (Scotland) Act 1995 74 Jurisdiction: Scotland Crime Updated: 02 May 2022; Ref: scu.164568
Where the prosecution had delayed nearly four years between interview and charge, that delay was so unreasonable as to render a continuation of the prosecution a breach of the defendant’s human rights to a fair trial. The period to be considered not when the police first heard of the allegation and began to investigate, but … Continue reading Regina v HM Advocate: HCJ 14 Apr 2000
Citations: [2017] ScotHC HCJAC – 70 Links: Bailii Statutes: Criminal Procedure (Scotland) Act 1995 288Zb Jurisdiction: Scotland Crime Updated: 30 March 2022; Ref: scu.595867
A Scottish search warrant was executable in England since it counted as a summary act under repealed legislation, though was also subject to the protection in England against searches of journalist’s materials. Times 22-Oct-1998, [1998] EWHC Admin 974 Criminal Procedure (Scotland) Act 1995, Police and Criminal Evidence Act 1984 England and Wales Citing: Mentioned – … Continue reading Regina v Manchester Stipendiary Magistrate, ex parte Granada Television Limited: Admn 16 Oct 1998
Appeal against conviction for disorderly behaviour in asking shop assistant inappropriate questions relating to women’s underwear, and otherwise. Rejection of plea of insufficiency. Lord Drummond Young [2015] ScotHC HCJAC – 25 Bailii Criminal Procedure (Scotland) Act 1995 160 Scotland, Crime Updated: 28 December 2021; Ref: scu.544191
The defendant had been convicted of an offence of supplying drugs whilst on licence for a similar offence. The court considered a request for an order under the 2002 Act. Lord Boyd of Duncansby [2014] ScotHC HCJ – 112 Bailii Criminal Procedure (Scotland) Act 1995 76, Misuse of Drugs Act 1971 4(3)(b), Proceeds of Crime … Continue reading HM Advocate v McAllister: HCJ 7 Oct 2014
The appellants, in separate bills of advocation, made complaint against decisions of the Sheriff at Perth, whereby the said sheriff, when the indictment called for trial in the sitting to which it had been appointed, ex proprio motu adjourned the trial diet, and thereafter granted a motion by the procurator fiscal depute for an extension … Continue reading Bills of Advocate By Harun Akhtar and Nothers: HCJ 23 Jul 2014
Note of appeal under section 65(8) of the 1995 Act against a decision of the sheriff granting two applications made under section 65(5) of the Act to extend retrospectively the periods of 11 and 12 months, referred to in section 65(1) of the Act, in relation to two petitions on which the appellant appeared in … Continue reading Collins v Her Majesty’s Advocate: HCJ 19 Dec 2013
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later become standard practice. Held: The test for whether should have been disclosed is to ask whether there … Continue reading McInnes v Her Majesty’s Advocate: SC 10 Feb 2010
Statement without lawyer access was inadmissible The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer. Held: The section must be read … Continue reading Cadder v Her Majesty’s Advocate: SC 26 Oct 2010
The police went to the defendant’s flat to find her boyfriend. She refused them access, but when they saw him, the police officers called out that he was under arrest under the 1995 Act, and forced their way past the door and the defendant. The defendant appealed her conviction under the 1967 Act. Held: The … Continue reading Gillies v Procurator Fiscal, Elgin: HCJ 1 Oct 2008
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence and, after a breach, recalled. Having served the full original sentence, he now complained that the … Continue reading Brown v The Parole Board for Scotland, The Scottish Ministers and Another: SC 1 Nov 2017
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters. Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider whether there should be a retrial. As an appeal in a criminal matter, the Supreme Court had no jurisdiction … Continue reading Fraser v Her Majesty’s Advocate: SC 25 May 2011
The defendant, accused of murder appealed against refusal of bail, denying the existence of a prima facie case against him. Held: Jie Lien was not authority for the proposition that a warrant can be suspended in the course of a bail appeal. That was a statutory procedure: ‘ It is, as it says, an appeal … Continue reading CMcL v Her Majesty’s Advocate: HCJ 28 Mar 2013
(From High Court of Justiciary (Scotland)) The defendant had been convicted of drug trafficking. He complained that the following confiscation order had infringed his human rights being based an assumption of guilt and which was incompatible with his article 6 rights. The first question was whether he remained a person ‘charged with a criminal offence’. … Continue reading Her Majesty’s Advocate and Another v Mcintosh: PC 5 Feb 2001
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the Convention, that the deputy controller was not an independent tribunal and that the … Continue reading Greenfield, Regina (on the Application of) v Secretary of State for the Home Department: HL 16 Feb 2005
The applicant, after arrest, had been forced to regurgitate a bag of cocaine, there was a complaint that article 3 had been violated as well as article 6. Held: Even evidence which may properly be described as ‘independent of the will of the suspect’ which has been obtained by inhuman or degrading treatment may constitute … Continue reading Jalloh v Germany: ECHR 11 Jul 2006
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The issue in this case is the legality of the Government’s decision to provide mutual … Continue reading Elgizouli v Secretary of State for The Home Department: SC 25 Mar 2020
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the exemption continued until the papers were destroyed, or for 20 years under the 1958 Act. Held: The … Continue reading Kennedy v The Charity Commission: SC 26 Mar 2014
Presumption in Favour of Open Proceedings There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt. Held: The House equated the contempt to a breach of an injunction … Continue reading Scott v Scott: HL 5 May 1913
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not invalidate them. Held: The appeal was allowed. The confiscation orders made by the … Continue reading Regina v Soneji and Bullen: HL 21 Jul 2005
With regard to proceedings under the 1968 Act, in no sense were these proceedings criminal proceedings. They were on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff is asked to consider whether this ground has been established under section 68 of … Continue reading McGregor v D: 1977
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and should have removed the neighbour, or warned them when their attempts to remove … Continue reading Mitchell and Another v Glasgow City Council: HL 18 Feb 2009
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated that presumption of innocence. The section required nothing of the Crown to even suggest … Continue reading Mcintosh v HM Advocate: HCJ 31 Oct 2000
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if the suffering of psychiatric injury by the parent was a foreseeable result of making it and … Continue reading JD v East Berkshire Community Health NHS Trust and others: HL 21 Apr 2005
Standing to Claim under A1P1 ECHR The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable harm for the purposes of an action of damages for personal injury. Held: The insurers’ appeals failed. … Continue reading AXA General Insurance Ltd and Others v Lord Advocate and Others: SC 12 Oct 2011
Power to call in is administrative in nature The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights to a fair hearing before … Continue reading Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others: HL 9 May 2001
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release. Held: The standard of proof in such applications remained the balance of probabilities, but that standard was flexible, and varied according to the seriousness of the allegation. The only misdirection … Continue reading AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others: CA 21 Dec 2005
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious faiths. Held: A distinction was to be made between domestic cases involving actions within … Continue reading Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department: HL 17 Jun 2004
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic missile programmes. The bank sought to have the direction given under section 7 of the 2008 Act. … Continue reading Bank Mellat v Her Majesty’s Treasury (No 2): SC 19 Jun 2013
Appellate Roles – Human Rights – Families Split The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own request refused but that of his family had … Continue reading Huang v Secretary of State for the Home Department: HL 21 Mar 2007
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the Convention the right to silence and the right not to incriminate oneself are generally recognised international … Continue reading Saunders v The United Kingdom: ECHR 17 Dec 1996
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; whether time ran from the date of the first breach, whether want of proportionality is … Continue reading Somerville v Scottish Ministers: HL 24 Oct 2007
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution. Held: The admission of the evidence may not infringe the defendant’s human rights. However, there is no absolute rule that the fruits … Continue reading Her Majesty’s Advocate v P: SC 6 Oct 2011
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this. Held: The action failed. The plaintiff had not proved that the smoking of cigarettes was the cause of the lung cancer, and it was … Continue reading McTear v Imperial Tobacco Ltd: OHCS 31 May 2005
The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had had to be repealed and re-enacted in the 2010 Act. Held: Leave was refused. … Continue reading Regina v Budimir and Another: CACD 29 Jun 2010
